Citation NR: 9630487
Decision Date: 10/29/96 Archive Date: 11/08/96
DOCKET NO. 94-23 875 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Whether new and material evidence has been submitted to
reopen the veteran’s claim for service connection for a
urinary tract disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Keith L. Salas, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1942 to
August 1943 and from July 1945 to September 1945.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a February 1993 rating decision of the
Department of Veterans Affairs (VA) Roanoke, Virginia
Regional Office (RO) that denied the veteran’s request to
reopen a claim for service connection for a urinary tract
disability on the basis that new and material evidence was
not received.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in essence, that
there is new and material evidence reopen the veteran’s
claim.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted to reopen the veteran’s claim for service
connection for a urinary tract disability.
FINDINGS OF FACT
1. A rating decision dated in July 1975 found no new and
material evidence had been submitted to reopen the veteran's
prior claim for service connection for a urinary tract
disability. The veteran, having been notified of the
decision in August 1975, did not file a notice of
disagreement or an appeal.
2. The evidence submitted by the veteran since that time
does not raise a reasonable possibility of changing the
outcome of the July 1975 rating decision denying service
connection for a urinary tract disability.
CONCLUSIONS OF LAW
1. The July 1975 rating decision denying service connection
for urinary tract disability is a final disallowance of the
veteran’s claim. 38 U.S.C.A. § 7105; Evans v. Brown, No. 93-
1220, slip op. at 17 (U.S. Vet. App. Aug. 1, 1996); 38 C.F.R.
§§ 3.104(a), 20.200, 20.1103.
2. The veteran has not submitted new and material evidence
to reopen his claim for service connection for a urinary
tract disability. 38 U.S.C.A. §§ 5107(a), 5108 (West 1991 &
Supp. 1995); 38 C.F.R. §3.156(a) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran’s February 1942 induction examination report
showed no defects or findings pertaining to a urinary tract
disability. The veteran's July 1945 record at time of
reporting for active duty (second period), also showed no
findings related to a urinary tract disability. A July 1945
report indicates that the veteran was seen for complaints of
pain in the area of his kidneys for the past year. The
veteran also reported painful urination with frequency eight
times a day and nocturia three times per night with
occasional bed-wetting. A genitourinary examination with
urinalysis was done. The diagnosis was no genitourinary
pathology found. An August 1945 service medical record
indicates a “long history of enuresis confirmed in [the]
army.” The diagnosis was nocturnal enuresis. The report
suggests a psychiatric examination and social history. A
service medical social history dated in August 1945 indicates
that the veteran was enuretic as a child and as an
adolescent. The report indicates that the condition started
again in 1939. The report notes that one of the veteran's
brothers suffers from enuresis; and that his father suffers
from nocturia. A medical notation from later in August 1945
indicates that enuresis was confirmed by social history. The
veteran was discharged because of the enuresis. The
veteran’s discharge physical examination report, dated in
September 1945 indicates that the veteran complained of
painful urination and the inability to hold urine. The
report further indicated that the condition existed prior to
service but has become worse since entry into service.
Nocturnal enuresis was diagnosed.
In October 1945, the veteran filed a claim for service
connection for painful urination and the inability to hold
urine for very long. The claim indicates that the condition
existed prior to service, but contends that the condition
worsened during service.
With consideration of the aforementioned evidence, in a
rating decision dated in April 1946, service connection for
nocturnal enuresis was denied on the basis that the
disability existed prior to induction and was not aggravated
by service. It was also noted that the disability is in the
nature of a constitutional or developmental abnormality. The
veteran was notified of this rating decision, but did not
submit an application for review on appeal; accordingly, the
April 1946 rating decision is final. Veterans Regulation No.
2(a), pt. II, par. III; Department of Veterans Affairs
Regulation 1008; effective January 25, 1936 to December 31,
1957.
In June 1975 the veteran requested that his previously denied
claim for service connection be reopened. In connection with
the request, the veteran and his representative submitted a
July 1975 private medical statement from M. H. L., M.D.
indicating that the veteran was suffering “urinary system
disease, not determined.”
With consideration of the aforementioned evidence, a rating
decision dated in July 1975, denied the veteran’s application
to reopen his claim for service connection for a urinary
tract disability on the basis that no new and material
evidence was submitted to reopen the veteran's claim. The
veteran was notified of this rating decision by letter dated
in August 1975. The United States Court of Veterans Appeals
(Court) has held that a decision by the RO “refusing, because
of a lack of new and material evidence, to reopen a
previously and finally disallowed claim, after having
considered newly presented evidence, is, in the truest sense
of the word, another ‘disallowance’ of a claim -- the claim
to reopen -- because that claim is not being ‘allowed.’”
Evans v. Brown, No. 93-1220, slip op. at 17 (U.S. Vet. App.
Aug. 1, 1996). The veteran did not submit a notice of
disagreement or appeal with respect to the July 1975 rating
decision; accordingly, the July 1975 rating decision is
final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200,
20.1103.
In February 1993 the veteran again requested that his claim
for service connection for a urinary tract disability be
reopened. The RO notified the veteran of the necessity of
submitting new and material evidence. However, the veteran
did not do so, and the RO, by letter dated April 1993,
refused to reopen the veteran's claim.
The veteran filed a notice of disagreement on October 1993,
and was provided with a statement of the case in March 1994.
The veteran submitted a substantive appeal in May 1994
requesting a regional office hearing.
At his hearing at the RO, held in May 1995, the veteran
testified that he did not have any problems with his bladder
or kidneys prior to service. Transcript, p. 2. He testified
that he first began having daytime and nighttime episodes of
not being able to control his bladder while in service.
Transcript, p. 2. He also testified that he continues to
have bladder control problems. Transcript, pp. 7,9.
A hearing officer decision dated in May 1995 confirmed and
continued the previous denial of service connection for a
urinary tract disability on the basis that no new and
material evidence was presented to reopen the veteran's
claim. The veteran was given a supplemental statement of the
case in May 1995.
Pursuant to 38 U.S.C.A. § 7105(c) (West 1991), if no notice
of disagreement is filed within the prescribed period, the
determination shall become final and the claim will not
thereafter be reopened and allowed. The exception to this
finality rule is 38 U.S.C.A. § 5108 (West 1991) which states
that "[i]f new and material evidence is presented or secured
with respect to a claim which has been disallowed, the
Secretary shall reopen the claim and review the former
disposition of the claim." Once a rating decision becomes
final under section 7105(c), absent the submission of new and
material evidence, the claim cannot be reopened or
readjudicated by the VA. 38 U.S.C.A. § 5108.
In Manio v. Derwinski, 1 Vet.App. 140, the Court of Veterans
Appeals established that the BVA must perform a two-step
analysis when a veteran seeks to reopen a claim based upon
new evidence. First, the BVA must determine whether the
evidence is "new and material" within the meaning of 38
U.S.C. § 5108. Second, if the BVA determines that the
veteran has produced new and material evidence, the case is
reopened and the BVA must evaluate the merits of the
veteran's claim in light of all the evidence, both new and
old. Id. at 145. “New and material evidence” means evidence
not previously submitted to agency decision makers which
bears directly and substantially upon the specific matter
under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the claim.
38 C.F.R. § 3.156. Furthermore, the new evidence presented
when viewed in the context of all evidence, both old and new,
must raise a reasonable possibility of changing the outcome
of the prior rating decision. Colvin v. Derwinski, 1
Vet.App. 171 (1991). In applying the first part of the Manio
test, i.e., whether the evidence is "new and material" for
purposes of reopening, the credibility of the evidence is to
be presumed. Justus v. Principi, 3 Vet.App. 510, 512-13
(1992).
However, the Court has held that this presumption of
credibility is not unlimited. Justus does not require the VA
to consider patently incredible evidence (e.g. the inherently
false or untrue) to be credible. Duran v. Brown, 7 Vet.App.
216 (1994).
As noted above, the additional evidence presented since the
last final disallowance in July 1975 consists solely of the
veteran’s hearing testimony. This testimony is "new" in that
it was not previously considered by the RO, and shows the
veteran’s recollection that he did not have nocturnal
enuresis prior to entering service. However, the veteran's
current testimony, offered some 50 years after the inservice
events under review, is in direct conflict with the
contemporaneous service medical record evidence that was
compiled during service. That evidence, which was compiled
for the express purpose of evaluating and treating the
veteran’s medical complaints and symptoms, revealed a history
of nocturnal enuresis preexisting entrance into service.
Accordingly, the Board finds that the veteran’s current
testimony to the contrary to be patently incredible, and it
does not present a reasonable possibility of a changed
outcome.
Therefore, the Board finds that new and material evidence
has not been presented to reopen the veteran's claim for
service connection for a urinary tract disability.
38 U.S.C.A. § 5108; Colvin v. Derwinski, 1 Vet.App. 171
(1991); 38 C.F.R. § 3.156(a).
ORDER
The veteran’s claim for service connection for a urinary
tract disability is not reopened.
D. C. SPICKLER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals.
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